Another Poppin' Fresh Lawsuit

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Another Poppin' Fresh Lawsuit

The flying toaster, flagship of the popular After Dark screen-savers for personal computers, is described by its publisher, Berkeley Systems, as "a scrappy little hero." It also earns the company millions of dollars. Last year, Berkeley Systems sued competitor Delrina Corporation over a screen-saver depicting a cartoon character shooting down the ubiquitous winged appliances. Delrina claimed its toaster hunter product was a legal "fair use" satire of the popular After Dark offering, but the judge ruled that Delrina's flying toasters infringed the "total concept and feel" of Berkeley Systems's toasters. According to the judge, Delrina's product did not merely comment on Berkeley's, but competed with it for the same customers.

Now it's Berkeley Systems's turn to be taken to court for toaster infringement, courtesy of Jefferson Airplane. In a lawsuit filed on June 14 in San Francisco, lawyers for the former rock group say Berkeley ripped off the winged toaster from the cover art of Jefferson Airplane's 1973 album, Thirty Seconds Over Winterland. The album cover, featuring flying toasters, was created years before screen-savers - or the personal computer industry for that matter - were a twinkle in a hacker's eye. Berkeley Systems admits the Jefferson Airplane picture came first, but says its co-founder and CEO never saw it before releasing After Dark.

Even if Berkeley Systems copied the Jefferson Airplane toasters subconsciously, the question remains whether the company took only the "idea" of flying toasters from the Jefferson Airplane album (permitted under copyright law) or went further and copied Jefferson Airplane's copyrighted expression of that idea.

Imagine asking a bunch of artists who never saw the Jefferson Airplane or Berkeley Systems versions to draw a flying toaster. Would they come up with the same old chrome model with wings, or might they depict a variety of designs ranging from combat helicopter toasters to toasters suspended from balloons? The more different ways the idea of a "flying toaster" can be expressed, the more legal protection Jefferson Airplane might have for the model on its cover.